“Caregiver responsibilities” is not a protected category under federal fair employment practice laws, meaning that it is not unlawful to discriminate against individuals with caregiving responsibilities. Nevertheless, the EEOC has historically taken the position that such discrimination may be unlawful, if and to the extent stereotyping or other forms of disparate treatment are implicated. Recently, the EEOC has signaled a renewed interest in drawing attention to, and pursuing claims related to caregiver responsibility discrimination.
Specifically, on February 15, 2012, the EEOC held a public meeting to titled Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities. In a press release issued immediately following the meeting, the EEOC declared that “discrimination against pregnant women and workers with caregiving responsibilities remains a significant problem.” Since then, the EEOC has issued four press releases, announcing the filing of a pregnancy discrimination lawsuit and three separate settlements (one, two, three).
The press release also touted its earlier “groundbreaking” work around caregiver responsibilities discrimination. As background, and to help understand the EEOC’s perspective on this issue, prior EEOC publications pertaining to caregiver discrimination are described below.
In May 2007, the EEOC released enforcement guidance, titled Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. While conceding that “some employment decisions that adversely affect caregivers may not constitute unlawful discrimination based on sex or another protected characteristic… ,” the EEOC described six situations where caregiver responsibility discrimination would be unlawful. These situations are:
- Sex-based disparate treatment of female caregivers, focusing on sex-based stereotypes.
- Stereotyping and other disparate treatment of pregnant workers.
- Sex-based disparate treatment of male caregivers, such as the denial of childcare leave that is available to female workers.
- Disparate treatment of women of color who have caregiving responsibilities.
- Disparate treatment of a worker with caregiving responsibilities for an individual with a disability, such as a child or a parent.
- Harassment resulting in a hostile work environment for a worker with caregiving responsibilities.
In January 2009, the EEOC published Employer Best Practices for Workers with Caregiving Responsibilities. In general, the EEOC considers “best practices” to include:
- Developing, disseminating, and enforcing a strong EEO policy
- Training managers about legal obligations
- Responding to complaints efficiently and effectively, and protecting complainants and witnesses against retaliation
- Focusing on specific, documented, job-related qualifications for recruitment, hiring, and promotion decisions
- Ensuring that employment decisions are documented and communicated well
- Monitoring and engaging in periodic self-audits
With the EEOC signaling a renewed interest in pursuing claims of discrimination based on caregiving responsibilities, employers should take the opportunity to review their policies and practices, audit their employment decisions, and train managers to recognize their legal obligations and to respond appropriately to complaints of discrimination or unfair treatment.